The instructions to the jury requested by the appellant, in form and essence were instructions upon the effect of the evidence — the instruction known in our practice as the general affirmative charge. It is the settled rule, the instruction cannot be given where there is any conflict in the evidence, as to any material point involved in the determination of the cause ; nor where any material fact is to be inferred from the evidence, and is not a legal presumption from it. Without reviewing the evidence, it is enough to say, if the testimony of the plaintiff was credited, negli*463genee productive of the injury to the engines was not imputable to him. The negligence was an affirmative, defensive fact, and the burden of proving it rested on the defendant. If the instructions had been given, the province of the jury would have been invaded, and the court would have tried and pronounced judgment on the facts ; would have pronounced that the defendant had satisfied the burden of proof.
In Cobb v. Malone, 92 Ala. 630, the first case arising under the statute, (Pamph. Acts, 1890-91, p. 779), conferring on this court jurisdiction in civil cases to revise the rulings of the primary courts in the grant or refusal of motions for a new trial, it was said : ‘ ‘When there is no evidence to support the verdict, it is clearly the duty of the court to grant a new trial; no court, possessed of a proper sense of justice, and a due regard for a fair and impartial administration of the law, can afford to allow such a verdict to stand. But, when there is evidence on both sides, or some evidence to support the verdict, it should not be set aside, becausé it may not correspond with the opinion of the court, as to the weight of the testimony, or because it is against the mere preponderance of the evidence.” And it was further said : “That the decision of the trial court, refusing to grant a new trial on the ground of the insufficiency of the evidence, or that the verdict is contrary to the evidence, will not be reversed, unless, after allowing all reasonable presumptions of its Correctness, the preponderance of the evidence against the verdict is so decided as to clearly convince the court that it is wrong and unjust.” There has been repeated enunciation and reaffirmance of these views. Cases will occur which approach the border line — in which the court may feel the conviction that the verdict is not supported by the preponderance of the evidence — and yet the conviction of wrong and injustice may not be so clear as to justify interference with the peculiar province of the jury. As we have said there was conflict in the evidence — the presiding judge refused to grant a new trial, strengthening the presumption in favor of the correctness of the verdict — and we know of no safe precedent on which his rulings can be reversed.
Affirmed.